130 Wash. 516 | Wash. | 1924
The defendant Woodruff was having trouble with his automobile and took it to the plaintiff to be repaired. The latter did considerable work and charged $309.10 therefor, which Mr. Woodruff paid. A little later the car was returned to the shop for further repairs, which were made and a charge of $76.95 was also paid. Later still, the car was again taken to the plaintiff and additional repairs were made, for which a charge of $513.92 was made. This last bill Mr. Woodruff refused to pay, and this suit resulted. There were an original and a first, second and third amended answers and cross-complaints, and the trial was finally had upon the latter. In it Mr. Woodruff alleges that, after paying the first bill, he learned that the work which had been done was unskillful and of no value, and that, after he had paid the second bill, he learned that the repairs for which that charge was made were unskillful and of no value. He further alleged that, when he took the car back for the third time, he complained about the previous work and the plaintiff agreed to put the machine in good operating condition without any further expense to him; and that, in any event, the work done for which the charge sued on was made was also unskillful and worthless.
While the pleadings are long, boiled down they simply amount to this: The plaintiff seeks $513.92 for the last work done, and the defendant seeks to defeat that claim on the ground that he was not to pay for the work, and also because it was worthless, and by his cross-complaint he seeks to recover the sums previously paid by him for repairs, on the ground that the work therefor was unskillful and valueless.
At the close of the case, the court refused to permit the jury to consider the cross-complaint and submitted only the question whether plaintiff was entitled to re
It appears that the court sustained various motions and demurrers to the original and the first and second amended answers and cross-complaints and this is the first error assigned. It is our opinion that the appellant Woodruff is not in position to take advantage of any such alleged errors. He waived all of them by filing amended pleadings and the only pleading now before us is the third amended answer and cross-complaint, on which the trial was had. Goshert v. Wirth, ante p. 14, 226 Pac. 124.
It is next claimed that the court erred in permitting certain expert automobile mechanics to testify that they were acquainted with certain other mechanics who had previously done repair work on appellant’s car, and that they were skilled mechanics. We can see no valid objection to this testimony. The character of the work having been attacked, it was entirely proper that respondent should show that its work had been skillfully done, and one way of proving that was to show that the mechanics who did the work were skillful.
Complaint is made that the court refused to permit the jury to consider the cross-complaint. It will be remembered that by it the appellant sought to recover certain previous payments he had made to respondent on account of repairs, which it was alleged were unskillfully made and were valueless. The reason given by the court for withdrawing the cross-complaint from the consideration of the jury was that there was no substantial testimony in support of it. A reading of the testimony convinces us that the ruling of the court was correct. That the repair work was done, there is no question. The appellant’s testimony was to the effect that he had been having a great deal of trouble
Complaint is made concerning certain instructions given by the court and the refusal to give those requested by the appellant. All proper instructions requested were, in substance, covered by those given. After the cross-complaint had been withdrawn from the consideration -of the jury the issues were exceedingly simple, and the instructions given very fully and clearly and correctly covered the law and informed the jury of the issues it was to consider.
The last complaint is that the court erred in entering judgment against the appellant Maryland Casualty Company. This appellant got into the matter in this fashion: The appellant Woodruff for some reason went into default in the early stages of the case and judgment was taken against him. The court made an order setting aside the default if the appellant would give a bond for any costs and judgment which might
“Now, therefore, if said principal shall pay to Sunset Motor Company, the plaintiff above named, all costs and judgments that may be recovered against the principal herein in the above entitled action, not exceeding the sum of $600, then this obligation shall be void, otherwise to remain in full force and effect. ’ ’
We think the court erred in entering judgment against the bonding company. It was not a party to the action. The bond is not a statutory one. It goes no further than to agree to pay the judgment in the event the principal fails to do so. The principal not having failed to pay, the conditions of the bond are not violated. Recourse can be had to the bond only after the principal has failed to pay the judgment.
Inasmuch as the greater portion of the costs involved in this appeal have no relation to the appeal of the bonding company, we think that costs .in its favor should be $35. All steps in the appeal have been joined in by both appellants.
The judgment is reversed and the cause remanded with directions to vacate the judgment as to the bonding company. Its costs here shall be -taxed at $35. Other costs on this appeal will run against the other appellant, against whom the judgment is affirmed.
